EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of May 17, 1999
by and among
LYONDELL CHEMICAL COMPANY
LYONDELL CHEMICAL WORLDWIDE, INC.
LYONDELL CHEMICAL NEDERLAND, LTD.
and
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
J.P. MORGAN SECURITIES INC.
SALOMON SMITH BARNEY INC.
CHASE SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
This Registration Rights Agreement (this "Agreement") is made and entered
into as of May 17, 1999, by and among Lyondell Chemical Company, a Delaware
corporation (the "Company"), Lyondell Chemical Worldwide, Inc. ("LCW"), Lyondell
Chemical Nederland, Ltd., a Delaware corporation (together with LCW, the
"Guarantors"), and Donaldon, Lufkin & Jenrette Securities Corporation, J. P.
Morgan Securities Inc., Salomon Smith Barney Inc., Chase Securities Inc. and
NationsBanc Montgomery Securities LLC (each an "Initial Purchaser" and,
collectively, the "Initial Purchasers"), each of whom has agreed to purchase the
Company's 9 5/8% Senior Secured Notes, Series A, due 2007 (the "Series A
Notes"), 9 7/8% Senior Secured Notes, Series B, due 2007 (the "Series B Notes",
and together with the Series A Notes, the "Senior Notes") and 10 7/8% Senior
Subordinated Notes due 2009 (the "Subordinated Notes" and, together with the
Senior Notes, the "Initial Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May 11,
1999, (the "Purchase Agreement"), by and among the Company, the Guarantors and
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Notes, the Company and the Guarantors have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 2 of the Purchase Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in the Indenture
relating to the Series A Notes among the Company, the Guarantors and The Bank of
New York, as trustee, the Indenture relating to the Series B Notes among the
Company, the Guarantors and The Bank of New York, as trustee and the Indenture
relating to the Subordinated Notes among the Company, the Guarantors and The
Bank of New York, as trustee (collectively, the "Indentures").
The parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement with respect to a series of Initial Notes upon the occurrence
of (a) the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to Exchange Notes to be issued in the Exchange
Offer with respect to such series of Notes, (b) the maintenance of such Exchange
Offer Registration Statement continuously effective and the keeping of the
applicable Exchange Offer open for a period not less than the period required
pursuant to Section 3(b) hereof and (c) the delivery by the Company to the
Registrar under the applicable Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Initial Notes validly
tendered and not withdrawn by Holders thereof pursuant to the applicable
Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(b) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Company's 9 5/8% Senior Secured Exchange Notes, Series
A, due 2007, 9 7/8% Senior Secured Exchange Notes, Series B, due 2007 and
10 7/8% Senior Subordinated Exchange Notes due 2009 to be issued pursuant to the
applicable Indenture: (i) in the respective Exchange Offers or (ii) as
contemplated by Section 6(b) hereof.
Exchange Offer: The exchange and issuance by the Company of a principal
amount of a series of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of the series of Initial Notes issued under the same Indenture that are validly
tendered and not withdrawn by Holders in connection with such exchange and
issuance.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offers for each series of Initial Notes, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
to sell the Initial Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
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Holders: As defined in Section 2 hereof.
Majority Holders: As defined in Section 6(c)(xi) hereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and the
Guarantors relating to (a) an offering of Exchange Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i) that is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including post-
effective amendments) and all exhibits and material incorporated by reference
therein.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
Suspension Period: As defined in Section 4(c) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the Closing Date.
Transfer Restricted Securities: (I) Each Initial Note, until the earliest
to occur of (a) the date on which such Initial Note is exchanged in an Exchange
Offer for an Exchange Note and entitled to be resold to the public without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Initial Note has been disposed of in accordance with a Shelf
Registration Statement (and, if an Exchange Offer with respect to the relevant
series of Notes has been Consummated prior to such purchase, purchasers thereof
have been issued Exchange Notes), or (c) the date on which such Initial Note is
distributed to the public pursuant to Rule 144 under the Act (and, if an
Exchange Offer with respect to the relevant series of Notes has been Consummated
prior to such purchase, purchasers thereof have been issued Exchange Notes) or
is
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saleable pursuant to Rule 144(k) under the Act and each (II) Exchange Note
issued to a Broker-Dealer in an Exchange Offer until the date on which such
Exchange Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
Section 2. Holders.
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person owns Transfer Restricted Securities.
Section 3. Registered Exchange Offers.
(a) Unless an Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Company and the Guarantors shall (i) cause the Exchange Offer
Registration Statement with respect to each series of Initial Notes to be filed
with the Commission as soon as practicable after the Closing Date, but in no
event later than 90 days after the Closing Date (such 90th day being the "Filing
Deadline"), (ii) use their best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, but in
no event later than 210 days after the Closing Date (such 210th day being the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Exchange Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement and within the time period contemplated by
Section 3(b) hereof, commence and Consummate the Exchange Offer with respect to
each series of Initial Notes. Each Exchange Offer shall be on the appropriate
form permitting (i) registration of the Exchange Notes to be offered in exchange
for the Initial Notes that are Transfer Restricted Securities and (ii) resales
of Exchange Notes by Broker-Dealers that tendered into the Exchange Offer
Initial Notes that such Broker-Dealer acquired for its own account as a result
of market making activities or other trading activities (other than Initial
Notes acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their respective best efforts
to cause the Exchange Offer Registration Statement to be effective continuously,
and shall keep the Exchange Offer with respect to each series of Initial Notes
open for a period of not less than the minimum period required under
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applicable federal and state securities laws to Consummate such Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company and the Guarantors shall cause the Exchange Offers to comply
with all applicable federal and state securities laws. No securities other than
the Exchange Notes shall be included in the Exchange Offer Registration
Statement. The Company and the Guarantors shall use their respective best
efforts to cause the Exchange Offer with respect to each series of Initial Notes
to be Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
business days thereafter (such 30th day being the "Consummation Deadline").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Initial Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Company and
Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement. To the extent necessary to ensure that the Prospectus
contained in the Exchange Offer Registration Statement is available for sales of
Exchange Notes by Broker-Dealers, the Company and the Guarantors agree to use
their respective best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(a) and 6(c) hereof and in conformity
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
180 days from the Consummation Deadline or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold pursuant thereto or are no longer outstanding. The Company and
the Guarantors shall provide sufficient copies of the latest version of such
Prospectus
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to such Broker-Dealers, promptly upon request, and in no event later than one
day after such request, at any time during such period.
Section 4. Shelf Registration.
(a) Shelf Registration. If (i) an Exchange Offer is not permitted by
applicable law (after the Company and the Guarantors have complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation Deadline that (A) such Holder was prohibited by law or
Commission policy from participating in the applicable Exchange Offer or (B)
such Holder may not resell the Exchange Notes acquired by it in the applicable
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (C) such Holder is a Broker-Dealer
and holds Initial Notes acquired directly from the Company or any of its
Affiliates, then the Company and the Guarantors shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i) the
date on which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause 4(a)(i) above and (ii) the date
on which the Company receives the notice specified in clause 4(a)(ii) above,
(such earlier date, the "Filing Deadline"), a shelf registration statement
pursuant to Rule 415 under the Act (which may be an amendment to the Exchange
Offer Registration Statement (the "Shelf Registration Statement")), relating to
(1) all Transfer Restricted Securities of each series of Initial Notes with
respect to which an Exchange Offer is not permitted in the case of clause
4(a)(i) above or (2) the Transfer Restricted Securities specified in any notice
in the case of clause 4(a)(ii), and
(y) shall use their respective best efforts to cause such Shelf
Registration Statement to become effective on or prior to 60 days after the
Filing Deadline for the Shelf Registration Statement (such 60th day the
"Effectiveness Deadline").
If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., clause
4(a)(i) above), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
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To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company and
the Guarantors shall use their respective best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Sections 6(b) and 6(c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years (as extended
pursuant to Section 6(d)) following the Closing Date, or such shorter period as
will terminate on the earlier of the date when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto, no longer constitute Transfer Restricted Securities or are no longer
outstanding.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information which is required by rules of the Commission to be included in the
Shelf Registration Statement prior to the time it is declared effective. Each
selling Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
(c) Suspension. The Company and the Guarantors will have the ability to
suspend the Shelf Registration Statement (a "Suspension Period"), if the Company
and the Guarantors determine, in their reasonable best judgment, upon written
advice of counsel, that the continued effectiveness and use of the Shelf
Registration Statement would require the disclosure of confidential information
or interfere with any financing, acquisition, reorganization or other material
transaction involving the Company. A Suspension Period shall commence on and
include the date that the Company and the Guarantors give notice that the Shelf
Registration Statement is no longer effective or the Prospectus included therein
is no longer usable for offers and sales of Transfer Restricted Securities
covered by such Registration Statement and continue until holders of such
Transfer Restricted Securities either receive the copies of the supplemented or
amended prospectus contemplated by Section 6(c) hereof or are advised in writing
by the Company
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and the Guarantors that use of the Prospectus may be resumed. Any such
suspensions may not exceed (i) 60 days in the aggregate in the first twelve
month period after the Closing Date, (ii) 60 days in the aggregate in the twelve
month period immediately thereafter and (iii) 90 days in the aggregate during
any subsequent twelve month period.
Section 5. Liquidated Damages.
If (a) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (b) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (c) the Exchange Offer with
respect to any series of Initial Notes has not been Consummated on or prior to
the Consummation Deadline or (d) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable (provided that the unavailability of a
Registration Statement for the use of a Holder as a result of such Holder's
failure to provide information pursuant to Section 4(b) or make representations
required by Section 6(a)(ii) shall not be deemed to make the Registration
Statement fail to be usable) for its intended purpose (except as provided in,
and during the time periods specified in, Section 4(c)) without being succeeded
within five days by a post-effective amendment to such Registration Statement
that cures such failure and that is itself declared effective within 10 days of
the filing of such post-effective amendment (each such event referred to in
clauses (a) through (d), a "Registration Default"), then the Company and each
of the Guarantors hereby jointly and severally agree to pay to each Holder of
Transfer Restricted Securities affected thereby liquidated damages in an amount
equal to $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues for the first 90-day period immediately following
the occurrence of such Registration Default. The amount of the liquidated
damages shall increase by an additional $.05 per week per $1,000 in principal
amount of Transfer Restricted Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of liquidated damages of $.50 per week per $1,000 in principal amount of
Transfer Restricted Securities; provided that the Company and the Guarantors
shall in no event be required to pay liquidated damages with respect to a series
of Notes for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein, (i) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of clause (a) above, (ii) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of clause (b) above,
(iii) upon Consummation of the Exchange Offer, in the case of clause (c) above,
or (iv) upon the filing of a post-effective amendment to the Registration
Statement or an additional
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Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of clause (d) above, in each case with
respect to the applicable series of Notes, the liquidated damages payable with
respect to the Transfer Restricted Securities of such series of Notes as a
result of such clause (a), (b), (c) or (d), as applicable, shall cease to
accrue.
All accrued liquidated damages shall be paid to the record Holders entitled
thereto, in the manner provided for the payment of interest in the applicable
Indenture, on each Interest Payment Date, as more fully set forth in the
applicable Indenture and the Notes. Notwithstanding the fact that any
securities for which liquidated damages are due cease to be Transfer Restricted
Securities, all obligations of the Company and the Guarantors to pay liquidated
damages with respect to securities shall survive until such time as such
obligations with respect to such securities shall have been satisfied in full.
Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall (x) comply with all
applicable provisions of Section 6(c) below, (y) use their respective best
efforts to effect such exchange and to permit the resale of Exchange Notes by
Broker-Dealers that tendered in the Exchange Offer Initial Notes that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Initial Notes acquired
directly from the Company or any of its Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and (z) comply with
all of the following provisions:
(i) If, following the date hereof there has been announced a change in
Commission policy with respect to exchange offers such as the Exchange Offer,
that in the reasonable opinion of counsel to the Company raises a substantial
question as to whether the Exchange Offer is permitted by applicable federal
law, the Company and the Guarantors hereby agree to seek a no-action letter or
other favorable decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Transfer Restricted
Securities. The Company and the Guarantors hereby agree to pursue the issuance
of such a decision to the Commission staff level but shall not be required to
take commercially unreasonable action to effect a change of Commission policy.
In connection with the foregoing, the Company and the Guarantors hereby agree to
take all such other actions (other than such actions as may be commercially
unreasonable) as may be requested by the Commission or otherwise required in
connection with the issuance of such decision,
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including without limitation (A) participating in telephonic conferences with
the Commission, (B) delivering to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the Commission
staff.
(ii) As a condition to its participation in the Exchange Offer, each Holder
of Transfer Restricted Securities (including, without limitation, any Holder who
is a Broker Dealer) shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company and
the Guarantors (which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that (A) that such
Holder is not an Affiliate of the Company or a Broker-Dealer tendering Initial
Notes acquired directly from the Company for its own account, (B) such Holder
will have no arrangement or understanding with any person to participate in the
distribution of the Initial Notes or the Exchange Notes within the meaning of
the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but
will not receive Exchange Notes for its own account in exchange for Initial
Notes, neither the Holder nor any such other Person is engaged in or intends to
participate in a distribution of the Exchange Notes, and (D) any Exchange Notes
received by such Holder will be acquired in the ordinary course of its business.
If the Holder is a Broker-Dealer that will receive Exchange Notes for its own
account in exchange for Initial Notes, it will represent that the Initial Notes
to be exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities, and will acknowledge that
it will deliver a prospectus meeting the requirements of the Act in connection
with any resale of such Exchange Notes. It is understood that, by acknowledging
that it will deliver, and by delivering, a prospectus meeting the requirements
of the Act in connection with any resale of such Exchange Notes, the Holder is
not admitting that it is an "underwriter" within the meaning of the Act.
(iii) Prior to effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantors shall provide a supplemental letter to the
Commission (A) stating that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and Co.,
Inc. (available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action letter
obtained pursuant to Section 6(a)(i) above, (B) including a representation that
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neither the Company nor any of the Guarantors has entered into any arrangement
or understanding with any Person to distribute the Exchange Notes to be received
in the Exchange Offer and that, to the best of the Company's and each
Guarantor's information and belief, each Holder participating in the Exchange
Offer is acquiring the Exchange Notes in its ordinary course of business and has
no arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer and (C) any
other undertaking or representation required by the Commission as set forth in
any no-action letter obtained pursuant to Section 6(a)(i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall
(i) comply with all the provisions of Section 6(c) below and use their
respective reasonable best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company and the Guarantors will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Initial Notes
covered by any Shelf Registration Statement contemplated by this Agreement,
Exchange Notes having an aggregate principal amount equal to the aggregate
principal amount of Initial Notes sold pursuant to the Shelf Registration
Statement and surrendered to the Company for cancellation; the Company shall
register Exchange Notes on the Shelf Registration Statement for this purpose and
issue the Exchange Notes to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Company and the
Guarantors shall:
(i) use their respective best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the
period specified in Section 3 or 4 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such
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Registration Statement or the Prospectus contained therein (A) to contain an
untrue statement of material fact or omit to state any material fact necessary
to make the statements therein not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company and the Guarantors shall file promptly an
appropriate amendment to such Registration Statement curing such defect, and, if
Commission review is required, use their respective reasonable best efforts to
cause such amendment to be declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully
with Rules 424, 430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the Initial Purchasers and, in the case of a Shelf
Registration Statement, each Holder of securities covered thereby, promptly and,
if requested by such Holder, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any applicable Registration Statement or any post-
effective amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act or of
the suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, and (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
Prospectus in order to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company and the
Guarantors shall use their respective best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related Prospectus or
any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(v) furnish to the Initial Purchasers and, in the case of a Shelf
Registration Statement, each Holder of securities covered thereby, in connection
with such exchange or sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders in connection with such sale, if any, for a period of at
least five Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by reference)
to which such Holders shall reasonably object within five Business Days after
the receipt thereof. A Holder shall be deemed to have reasonably objected to
such filing if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading or fails to comply with the applicable
requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, provide
copies of such document to the Initial Purchasers and in the case of a Shelf
Registration Statement, each Holder of securities covered thereby, in connection
with such exchange or sale, if any, make the
14
Company's and each Guarantor's representatives available for discussion of such
document and other customary due diligence matters, and include such information
in such document prior to the filing thereof as the Initial Purchasers or such
Holders may reasonably request;
(vii) make available, at reasonable times, for inspection by the Initial
Purchasers and, in the case of a Shelf Registration Statement, each Holder of
securities covered thereby, and the designated counsel or any accountant
retained by such Holders, all financial and other records, pertinent corporate
documents of the Company and each Guarantor and cause the Company's and each
Guarantor's officers, directors and employees to supply all information
reasonably requested by any such Initial Purchaser, Holder, attorney or
accountant in connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its
effectiveness; provided, however, that such persons shall first agree in writing
with the Company and the Guarantors that any information that is reasonably and
in good faith designated by the Company and the Guarantors in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of such Registration Statement or
the use of any Prospectus), (iii) such information becomes generally available
to the public other than as a result of a disclosure or failure to safeguard
such information by such person or (iv) such information becomes available to
such person from a source other than the Company and its subsidiaries and such
source is not known, after due inquiry, by such person to be bound by a
confidentiality agreement; provided further, that the foregoing investigation
shall be coordinated on behalf of such persons by one representative designated
by and on behalf of such persons and any such confidential information shall be
available from such representative to such persons so long as any person agrees
to be bound by such confidentiality agreement;
(viii) if requested by the Initial Purchasers and, in the case of a Shelf
Registration Statement, any Holders of securities covered thereby, in connection
with such exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary,
such information as such Persons may reasonably request to have included
therein, including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities; and make all required
filings of such Prospectus
15
supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be included in such Prospectus supplement or post-
effective amendment;
(ix) furnish to the Initial Purchasers and, in the case of a Shelf
Registration Statement, each Holder of securities covered thereby, in connection
with such exchange or sale, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
(x) deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company and the
Guarantors hereby consent to the use (in accordance with law) of the Prospectus
and any amendment or supplement thereto by each selling Holder in connection
with the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(xi) in the case of a Shelf Registration Statement, enter into such
agreements (including underwriting agreements) and, the case of any Registration
Statement contemplated by this Agreement, make such representations and
warranties and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any applicable Registration Statement contemplated by this Agreement
as may be reasonably requested by any Initial Purchaser or, in the case of a
Shelf Registration Statement, the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities covered thereby (the "Majority
Holders") in connection with any sale or resale pursuant to any applicable
Registration Statement. In such connection, the Company shall:
(A) upon request of the Majority Holders (in the case of a Shelf
Registration Statement) or any Initial Purchaser (in the case of an Exchange
Offer), furnish (or in the case of Sections 6(c)(xi)(A)(2) and 6(c)(xi)(A)(3),
use its best efforts to cause to be furnished) to each Holder upon Consummation
of the Exchange Offer or upon the effectiveness of the Shelf Registration
Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the Company and
each Guarantor by (x) the President or
16
any Vice President and (y) a principal financial or accounting officer of the
Company and the Guarantor, confirming, as of the date thereof, the matters set
forth in Sections 6(d), 9(a) and 9(b) of the Purchase Agreement and such other
similar matters as may be reasonably requested;
(2) an opinion, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case may
be, of counsel for the Company and the Guarantors covering matters similar to
those set forth in paragraphs (e), (f) and (g) of Section 9 of the Purchase
Agreement and such other matter as may be reasonably requested, and in any event
including a statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company and the
Guarantors, representatives of the independent public accountants for the
Company and the Guarantors and have considered the matters required to be stated
therein and the statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the foregoing
(relying as to materiality to the extent such counsel deems appropriate upon the
statements of officers and other representatives of the Company and the
Guarantors and without independent check or verification), no facts came to such
counsel's attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or any post-
effective amendment thereto became effective and, in the case of the Exchange
Offer Registration Statement, as of the date of Consummation of the Exchange
Offer, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus contained in such Registration
Statement as of its date and, in the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the date of Consummation, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such
17
counsel assumes no responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements, notes and
schedules and other financial data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of Consummation of the
Exchange Offer, or as of the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company's independent accountants, in
the customary form and covering matters of the type customarily covered in
comfort letters to underwriters in connection with underwritten offerings, and
affirming the matters set forth in the comfort letters delivered pursuant to
Section 9(j) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably
requested by any of the Initial Purchasers or, in the case of any Shelf
Registration Statement, the Majority Holders, to evidence compliance with the
matters covered in Section 6(c)(xi)(A) above and with any customary conditions
contained in any agreement entered into by the Company and the Guarantors
pursuant to this Section 6(c)(xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the Holders named in the applicable Registration Statement (or
any prospectus supplement thereto) and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as any such Holders may
request and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Transfer Restricted Securities
covered by the applicable Registration Statement; provided, however, that
neither the Company nor any Guarantor shall be required to register or qualify
as a foreign corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities that
will result in such securities no longer being Transfer Restricted Securities,
cooperate with the Holders to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to
18
be sold and not bearing any restrictive legends; and, subject to the provisions
of the Indenture regarding global securities, to register such Transfer
Restricted Securities in such denominations and such names as the selling
Holders may request at least two Business Days prior to such sale of Transfer
Restricted Securities;
(xiv) use their respective best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in Section 6(c)(xii) above;
(xv) provide a CUSIP number for all Transfer Restricted Securities not
later than the effective date of a Registration Statement covering such Transfer
Restricted Securities and provide the Trustee under the applicable Indenture
with printed certificates for the Transfer Restricted Securities which are in a
form eligible for deposit with the Depository Trust Company;
(xvi) otherwise use their respective best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders with regard to any applicable Registration Statement, as
soon as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act);
(xvii) cause the Indentures to be qualified under the TIA not later than
the effective date of the first Registration Statement required by this
Agreement and, in connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indentures as may be required for such
Indentures to be so qualified in accordance with the terms of the TIA; and
execute and use its best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indentures to be so
qualified in a timely manner; and
(xviii) provide promptly to each Holder, upon request, each document filed
with the Commission pursuant to the requirements of Section 13 or Section 15(d)
of the Exchange Act.
19
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 4(c) or Section 6(c)(iii)(C) or any notice from the Company of the
existence of any fact of the kind described in Section 6(c)(iii)(D) hereof (in
each case, a "Suspension Notice"), such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until (i) such Holder has received copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(iv) hereof, or
(ii) such Holder is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in
each case, the "Recommencement Date"). Each Holder receiving a Suspension
Notice hereby agrees that it will either (i) destroy any Prospectuses, other
than permanent file copies, then in such Holder's possession which have been
replaced by the Company with more recently dated Prospectuses or (ii) deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Holder's possession of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of the
Suspension Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by a number of days equal to the number of days in the period from
and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
No holder may participate in any underwritten registration under the
Agreement unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled under this Agreement to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorneys, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
Section 7. Registration Expenses.
(a) All expenses incident to the Company's and the Guarantors' performance
of or compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses; (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates for the
Exchange Notes to be issued in the Exchange Offer and printing of Prospectuses,
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company, the Guarantors and, in accordance with Section 7(b)
below, the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing the Exchange Notes on a national
securities
20
exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public accountants of
the Company and the Guarantors (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or any Guarantor.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities who are tendering Initial Notes in the Exchange Offer and/or selling
or reselling Initial Notes or Exchange Notes pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Davis Polk & Wardwell,
unless another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
Section 8. Indemnification.
(a) The Company and each of the Guarantors agree, jointly and severally,
to indemnify and hold harmless each Holder, its directors, officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by the Company to any Holder or any prospective purchaser of
Exchange Notes or registered Initial Notes, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by an untrue
statement or omission or alleged untrue statement or omission that is based upon
information relating to any of the Holders furnished in writing to the Company
by any of the Holders provided, however, that the foregoing indemnity agreement
with respect
21
to the preliminary prospectus shall not inure to the benefit of any Holder who
failed to deliver the Prospectus, as then amended or supplemented (so long as
the Prospectus and any such amendment or supplement was provided by the Company
to the Holders in the requisite quantity and on a timely basis to permit proper
delivery) to the person asserting any losses, claims, damages, liabilities or
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or omission
was cured in the Prospectus, as so amended or supplemented.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantors, and
their respective directors and officers, and each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Company or the Guarantors to the same extent as the foregoing indemnity from
the Company and the Guarantors set forth in Section 8(a) above, but only with
reference to information relating to such Holder furnished in writing to the
Company by such Holder expressly for use in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto).
In no event shall any Holder, its directors, officers or any Person who controls
such Holder be liable or responsible for any amount in excess of the total
amount received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds the amount of any
damages that such Holder, its directors, officers or any Person who controls
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment
22
of such counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to assume the
defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Company and the Guarantors, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if the
settlement is entered into more than sixty days after the indemnifying party
shall have received a request from the indemnified party for reimbursement for
the fees and expenses of counsel (in any case where such fees and expenses are
at the expense of the indemnifying party) and more than twenty days after the
indemnifying party shall have received notice of the proposed settlement and,
prior to the date of such settlement, the indemnifying party shall have failed
to comply with such reimbursement request. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the
23
relative benefits received by the Company and the Guarantors, on the one hand,
and the Holders, on the other hand, from their sale of Transfer Restricted
Securities or (ii) if the allocation provided by clause 8(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on
the other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Guarantors, on the one hand, and of the Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Guarantors, on the one hand, or by the Holder, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Guarantors and each Holder agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
Section 9. Rule 144A and Rule 144.
24
The Company and each Guarantor agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding and during any period in which
the Company or any Guarantor (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
Section 10. Miscellaneous.
(a) Remedies. The Company and the Guarantors acknowledge and agree that
any failure by the Company and/or any Guarantor to comply with their respective
obligations under Sections 3 and 4 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce
the Company's and the Guarantors' obligations under Sections 3 and 4 hereof. The
Company and the Guarantors further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into any agreement
which remains in effect granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's and the Guarantors' securities under any agreement in
effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this clause 10(c)(i), the Company has obtained the written consent of
Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, the Company has obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer Restricted
Securities (excluding Transfer Restricted Securities held by the
25
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect its rights or the rights
of Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the applicable Indenture, with a copy to the Registrar under
such Indenture; and
(ii) if to the Company or the Guarantors:
One Houston Center, Suite 700
1221 McKinney Street
Houston, Texas 77010
Telecopier No.: 713-309-2143
Attention: General Counsel
With a copy to:
Baker & Botts
710 Louisiana
Houston, Texas 77002
Telecopier No.: 713-229-1522
Attention: Steve Massad, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
26
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the applicable Trustee
at the address specified in the relevant Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Purchase Agreement or the applicable Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
27
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
LYONDELL CHEMICAL COMPANY
By:
---------------------------------------
Name:
Title:
LYONDELL CHEMICAL WORLDWIDE, INC.
By:
---------------------------------------
Name:
Title:
LYONDELL CHEMICAL NEDERLAND, LTD.
By: ____________________________________
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
J. P. MORGAN SECURITIES INC.
SALOMON SMITH BARNEY INC.
CHASE SECURITIES INC.
NATIONSBANC MONTOGOMERY
SECURITIES LLC
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: ___________________________________
Name:
Title:
29
CROSS-REFERENCE TARGET LIST
===========================
NOTE: DUE TO THE NUMBER OF TARGETS SOME TARGET NAMES MAY NOT APPEAR IN THE
TARGET PULL-DOWN LIST.
(THIS LIST IS FOR THE USE OF THE WORDPROCESSOR ONLY, IS NOT A PART OF THIS
DOCUMENT AND MAY BE DISCARDED.)
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME
=============== =========== =============== =========== =============== =========== =============== ===========
2.................. holders
3.................. reg.exch.off
3(a)............... deadline
3(b)............... off.eff
3(c)............... plan.dist
4.................. shelf.reg
4(a)............... shelf.reg.dead
4(a)(i)............ exch.off.not.perm
4(a)(ii)........... holder.notify
4(b)............... prov.cert.info
5.................. liq.dam
6.................. reg.pro
6(a)............... exch.off.reg.stmt
6(a)(i)............ chg.comm.policy
6(b)............... shelf.reg.stmt
6(b)(i)............ sale.trans.restrict
6(b)(ii)........... series.b.notes
6(c)............... gen.prov
6(c)(i)............ reg.cont.eff
6(c)(iii).......... aff.mark.marker
6(c)(iii)(C)....... iss.stop.order
6(c)(iii)(D)....... exist.fact.untrue
6(c)(iv)........... prepare.supp
6(c)(xi)........... holder.req
6(c)(xi)(A)........ req.holder
6(c)(xi)(A)(2)..... co.coun.opin
6(c)(xi)(A)(3)..... comfort.ltr
6(c)(xii).......... blue.sky
6(d)............... restrict.holders
8.................. indem
8(a)............... co.indem
8(b)............... holder.indem
8(c)............... indem.party
8(d)............... indem.unavail
8(d)(i)............ appro.propor
10(c)(i)........... writ.consent.holder
30